Mortmain

Mortmain is the perpetual, inalienable ownership of real estate by a corporation or legal institution; the term is usually used in the context of its prohibition. Historically, the land owner usually would be the religious office of a church; today, insofar as mortmain prohibitions against perpetual ownership still exist, it refers most often to modern companies and charitable trusts. The term "mortmain" is derived from Mediaeval Latinmortua manus, literally "dead hand", through Old Frenchmorte main.[1]

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During the Middle Ages in countries such as England, the church acquired a substantial amount of real estate. As the church and religious orders were recognised as a legal person separate from the office holder who administered the church land (such as the abbot or the bishop), the land would not escheat on the death of the holder, as the church and the religious orders would not die. In addition, as the land was held in perpetuity, it would never pass by inheritance.

This was in contrast to feudal practice where the nobility would hold land on grant from the king in return for service, especially service in war. This meant that the church over time gained a large share of land in many feudal states and so was a cause of increasing tension between the church and the Crown.[2]

In 1279 and again 1290 Statutes of Mortmain were passed by King Edward I to circumscribe the church's holding of property, although limits on the church's power to hold land are also found in earlier statutes, including the Magna Carta of 1215 and the Provisions of Westminster of 1259.[3] The broad effect of these provisions was that the authorisation of the Crown was needed before the land could vest perpetually in a corporation. To indicate the response of the institutions, for example, the chartulary of Chertsey Abbey records that "shortly after one of these statutes vulgarly called Mortmain"' 11 acres (4.5 ha) in Ash were held by Robert de Zathe with sufficient common pasture for his flocks and herds while Geoffrey de Bacsete and his brother William had 28 acres (11 ha).[4]

Although statutes prohibiting mortmain have been abolished in most countries today, the principle still subsists to a certain extent in relation to trust law in the form of the rule against perpetuities.

Mortmain played an important part in legal history, and earlier case law often needs to be considered against this background. For example, the judicial decision in Thornton v Howe[5] held that a trust for publishing the writings of Joanna Southcott[6] was charitable being for the "advancement of religion". This decision is often held up as setting the bar extremely low in determining whether a charity is for the advancement of religion.[7] But if one considers that at the time the statutes against mortmain were in force, and that the effect of the decision was that the trust was void, rather than imbuing it with special privileges in relation to taxation, it puts a very different spin on the ratio decidendi.

Formed from the classic legal Latin manus, (also present in mancipatio, mando) meaning power, authority (over one's wife, children and slaves) ; and the power and capacity to buy and sell (slaves or estates).

To which was added the medieval legal Latin mortuus which does not mean dead but inalienable, unable to be given, rented or sold, as in mortgage.

Mortmain means thus incapacity of selling possessions or estates.

Another possible origin of the term is to indicate that a person who had died years earlier still dictated land use to the next generations by leaving it to the Church, which never died, and hence never had to relinquish land.

A further explanation is that the property of religious corporations could be said to be "in dead hands", as the members of such corporations were considered civilly dead after taking religious oaths.[8]

^Who claimed she was pregnant by the Holy Ghost and would give birth to the new Messiah; a prediction which was apparently not borne out by events.

^Hanbury & Martin, Modern Equity, cites it as authority for the proposition that: "any belief, no matter how outlandish, shared perhaps by only a handful of friends, be entitled to the perpetuity and fiscal advantages given to charities".